This is a redacted version of the original decision. Select details have been removed from the

decision to preserve anonymity of the student. The redactions do not affect the substance of

the document.

PENNSYLVANIA SPECIAL EDUCATION HEARING OFFICER

DECISION

Child’s Name:

A. B.

Date of Birth:

[redacted]

CLOSED HEARING

ODR File 18366 16 17

Dates of Hearing:

5/2/17, 5/3/17, 7/25/17, 7/31/17

Parent(s):

[redacted]

Heather M. Hulse, Esquire, McAndrews Law Offices, P. C.,

404 North Washington Avenue, Suite 310,

Scranton, PA 18503

Counsel for Parents

School District:

Pleasant Valley School District, 2233 Route 115,

Brodheadsville, PA 18322

Glenna M. Hazeltine, Esquire, King Spry Herman Freund & Faul LLC, One West Broad Street,

Suite 700,

Bethlehem, PA 18018

Counsel for the Local Educational Agency

Date of Decision:

9/16/17

Hearing Officer:

Cathy A. Skidmore, M.Ed., J.D.

Page 2 of 34

INTRODUCTION

The student (hereafter Student)1 is a beyond-teenaged young adult who previously

resided in and attended the Pleasant Valley School District (District). Prior to graduation,

Student was eligible for special education pursuant to the Individuals with Disabilities Education

Act (IDEA)2 on the bases of Autism, Intellectual Disability, and a Speech/Language Impairment.

During Student’s final years of high school, beginning in the fall of 2013, Student attended an

Adult Training Facility (ATF) for vocational programming several days each week.

Student’s Parents filed the instant due process complaint against the District in October

2016, asserting that it denied Student a free, appropriate public education (FAPE) under the

IDEA and Section 504 of the Rehabilitation Act of 1973.3 The case proceeded to a due process

hearing that was continued for a variety of unavoidable reasons, and ultimately convened over

four sessions.4 The Parents sought to establish that the District failed to address Student’s many

and varied needs throughout the time period in question, and that a compensatory remedy was

warranted. The District maintained that its special education program, as offered and

implemented, was appropriate for Student and that no relief was due.

For the reasons set forth below, the Parents’ claims will be granted in part and denied in

part.

1 In the interest of confidentiality and privacy, Student’s name and gender, and other potentially identifiable

information, are not used in the body of this decision. 2 20 U.S.C. §§ 1400-1482. The federal regulations implementing the IDEA are codified in 34 C.F.R. §§ 300.1 –

300. 818. The applicable Pennsylvania regulations are set forth in 22 Pa. Code §§ 14.101 – 14.163 (Chapter 14). 3 29 U.S.C. § 794. 4 References to the record throughout this decision will be to the Notes of Testimony (N.T.), Parent Exhibits (P-)

followed by the exhibit number, School District Exhibits (S-) followed by the exhibit number, and Hearing Officer

Exhibits (HO-) followed by the exhibit number. Citation to the hearing transcript from the May 2015 session will be

to S-47 followed by the exhibit page number and then the transcript page number (e.g., S-47 p. 3 at 12). References

to Parents in the plural will be made where it appears that one was acting on behalf of both, and to the singular

Parent to refer to Student’s mother who was more actively involved in the educational program during the time

period in question.

Page 3 of 34

PROCEDURAL HISTORY

A. The Parents previously filed a Due Process Complaint against the

District in 2015, proceeding pro se, and an initial hearing session

convened on May 5, 2015. (S-47)

B. The Parents subsequently retained counsel, and the parties reached an

agreement to conduct independent evaluations and to toll the filing date

to late July 2013. (S-19 p. 2, S-25 p. 1, S-26 p. 2)

C. The Parents filed the instant Complaint in October 2016. (S-25)

D. The District sought to limit the scope of the Parents’ claims, including

any remedy, to the period of late July 2013 to the end of the 2015-16

school year. The Parents did not attempt to raise claims that pre-dated

July 2013, but did seek relief consistent with G.L. v. Ligonier Valley

School District Authority, 802 F.3d 601, 625 (3d Cir. 2015). This

hearing officer concluded that G.L. did apply to this case, noting that

the Complaint was filed approximately one year after G.L. was decided

by the Third Circuit. (N.T. 410-12, 708-10; HO-2)

E. The Parents offered a number of exhibits to support their suggested

remedy under G.L., virtually all of which were education records of

Student for the period of time that Student was enrolled in the District

prior to the fall of 2012. The District objected to admission of those

documents, and this hearing officer reserved ruling on the Parent

exhibits. (N.T. 815-20) The admission of those exhibits is discussed

infra.

ISSUES

1. Whether the educational program developed and implemented for

Student by the District was appropriate in addressing Student’s

unique needs between late July 2013 and the end of the 2015-16

school year; and

2. If the educational program was not appropriate for Student,

whether Student should be awarded compensatory education and,

if so, in what form and amount?

FINDINGS OF FACT

1. Student is a beyond-teenaged young adult. During the time period in question, Student

attended school in the District and was eligible for special education under the IDEA

Page 4 of 34

classifications of Autism, Intellectual Disability, and Speech/Language Impairment.

Student was also a protected handicapped Student under Section 504 and Chapter 15

throughout that period of time. (N.T. 31-32; S-1, S-10)

2. Student attended school in the District since entry into public school at the start of the

2000-01 school year. (S-1 p. 1)

3. Student tends to isolate self from noisy environments, sometimes returning on Student’s

own or with prompting. In the classroom, Student would take a break to calm self at

those times. Student would likely not do well with vocational pursuits in a noisy

environment. (N.T. 324-25, 426, 720-21; S-4 p. 4)

4. Student exhibited anxiety at school on occasion, usually over something involving the

family including the Parent attending an IEP meeting. When anxiety was manifested,

Student could sometimes be easily redirected and required more prompting at other

times. Student’s teachers did not consider the anxiety to be significant or concerning.

(N.T. 348-49, 422, 426, 545-46, 747-48)

5. Student is a better auditory learner than a visual learner. (N.T. 589)

6. Student needs to continue to practice and reinforce receptive and expressive language

skills, including pragmatic language, due to Student’s unique needs. (N.T. 206-07)

7. Student needs continued repetition and practice of academic skills in order to maintain

those skills. (N.T. 464, 693; S-1)

8. Student’s attendance impacted Student’s ability to learn and maintain skills. (N.T. 185-

87, 283-84, 344, 368, 379, 436, 680; S-3, S-6, S-12)

9. When a student misses a significant number of school days, the District convenes a

meeting to develop a truancy elimination plan and also recommends a psychiatric

evaluation. (N.T. 333-34)

10. The District did not develop a truancy elimination plan for Student. (N.T. 380)

11. Student graduated after the 2015-16 school year concluded and the District delivered

Student’s diploma to the home. Student did not attend any educational program since

that time. (N.T. 32-34, 680, 742-43, 731, 739)

12. The Parents want Student to learn a trade in order to be employable and to be self-

sufficient. (N.T. 737)

13. Student would need support in order to function in a community work setting. (N.T. 250-

51, 258-59, 443, 547-48)

Page 5 of 34

EDUCATIONAL BACKGROUND

14. The District conducted an evaluation of Student and issued a Reevaluation Report (RR)

in November 2012. (N.T. 42; S-1)

15. The District school psychologist understood that the purpose of the November 2012 RR

was to determine whether Student was making progress within the curriculum as well as

toward IEP goals. (N.T. 55)

16. Parent input into the November 2012 RR reflected concerns that Student was regressing

despite having the ability to retain information, and that Student isolated self. (S-1 p. 2)

17. Student was cooperative with the administration of cognitive assessment for the 2012

RR, the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV). Student attained

a Full Scale IQ score (47) in the extremely low range (< 0.1 percentile) with all Index

scores also in the extremely low range. (S-1 p. 2)

18. The District school psychologist obtained teacher rating scales of Student’s adaptive

behavior (Adaptive Behavior Assessment System – Second Edition (ABAS-II)) for the

2012 RR. Student reportedly exhibited extremely low adaptive behavior with the

exception of School Living (below average range). No Parent ABAS-II rating scales

were obtained because the District was looking at performance in the school

environment. (N.T. 48, 64; S-1 pp. 2-3)

19. The District school psychologist did not conduct any academic achievement assessment

for the 2012 RR but obtained curriculum-based assessments to determine how Student

was performing within the curriculum. Student reportedly was at an instructional second

grade level in reading comprehension and mathematics skills. (N.T. 48, 55-56; S-1 p. 3)

20. The District school psychologist did not observe Student in the classroom for the 2012

RR. She did not find any concerns regarding Student’s behavior, emotional functioning,

or social functioning. (N.T. 50, 57, 60, 62, 68-69; S-1)

21. Teacher input into the 2012 RR reflected that Student was provided small group reading,

language arts, and mathematics instruction in the Life Skills classroom. Student required

prompting and redirection to maintain focus and attention and follow directions

throughout the school day, especially when presented with non-preferred tasks. Student

also needed continued repetition and practice in order to maintain skills. The classroom

incentive program was reportedly successful for Student. (S-1)

22. Teachers also reported that Student participated in vocational instruction and experiences

at school, demonstrating difficulty with multi-step directions especially with unfamiliar

tasks. Student learned new vocational skills with direct instruction and prompting until a

task became familiar. (S-1)

Page 6 of 34

23. Teacher input also reflected that Student engaged socially with peers and adults, but that

there were times that Student would choose to draw quietly alone during free time. (S-1

p. 4)

24. Speech/language input into the 2012 RR included results of the Expressive One-Word

Picture Vocabulary Test – Fourth Edition (EOWPVT) and the Receptive One-Word

Picture Vocabulary Test – Fourth Edition (ROWPVT). Student was cooperative with

those tests, attaining scores at the 1st percentile on the EOWPVT and below the 1st

percentile on the ROWVT. Continuation of speech/language therapy twice per six-day

cycle was recommended. (S-1 p. 5)

25. The November 2012 RR identified Student as eligible for special education on the bases

of Autism, Intellectual Disability, and a Speech or Language Impairment.

Recommendations included continuation of small group instruction and a functional

curriculum, community-based instruction, and prompts for focus. (S-1)

26. The District school psychologist who issued the November 2012 RR did not meet with

the Parents to review its results. (N.T. 52)

27. An Individualized Education Program (IEP) was developed in early December 2012 after

the RR. The Parents and Student did not attend this meeting. (S-2)

28. At the time of the December 2012 IEP, Student was demonstrating reading

comprehension and reading accuracy skills on a Qualitative Reading Inventory (QRI) at

the same level as the previous school year, reflecting a second grade instructional reading

level. (S-2 pp. 9-10)

29. At the time of the December 2012 IEP, Student demonstrated the ability to provide

written demographic information when requested, but needed prompts and further

practice in completing forms requiring such information. Student at that time indicated

an interest in employment in retail or personal service. (S-2 p. 11)

30. The December 2012 IEP noted needs with respect to semantic and pragmatic language;

reading comprehension; functional mathematics skills; attention and focus; following

directions containing more than one step; continued development of safety awareness;

and vocational skills (completing forms/applications, self-advocacy, and exploring

vocational opportunities). (S-2 p. 14)

31. Transition services in the December 2012 IEP noted goals for supported employment

opportunities but not post-secondary education, and supported living. Activities toward

the employment goal included job site instruction for school- and community-based tasks

and completion of a career interest survey. Student had already completed an application

with the Office of Vocational Rehabilitation (OVR). Activities toward the supported

living goal included instruction in activities of daily living. (S-2)

32. The December 2012 IEP provided annual goals and short term objectives in functional

mathematics skills (telling time, counting money and determining amounts of purchase

and change, solving word problems using addition, subtraction or money, using fractions

Page 7 of 34

for measuring recipe ingredients, and comparing quantities and amounts); reading

comprehension at a third grade level (identifying story elements, answering “wh” and

other comprehension questions, using comprehension strategies) and reading fluency and

accuracy; expressive, receptive, and pragmatic language (identifying items within

categories, labeling items/events, conversational turns with prompting); vocational skills

(identifying jobs of interest, completing applications with demographic information, and

following multi-step directions and focusing attention); and activities of daily living

(following multi-step directions and focusing attention, danger awareness). (S-2)

33. Program modifications/items of specially designed instruction in the December 2012 IEP

were for small group reading instruction, a modified curriculum focused on key concepts,

a functional academic curriculum, materials read to and reviewed with Student, test

accommodations and modifications, repeated and simplified directions, additional

processing time, presentation of new vocabulary both visually and auditorally, prompts

and assistance for written tasks, prompts for focus and task completion, use of a

calculator, positive reinforcement, community-based instruction, opportunities for

practice and repetition of skills, and communication with the Parents. Small group

speech/language support and daily transportation were related services. (S-2)

34. Student was determined to be not eligible for Extended School Year (ESY) services

because Student’s ability to recoup skills and make progress on IEP goals was deemed to

be adequate. Student’s program was for life skills for all academic, daily living, and

vocational instruction in addition to speech/language support. The Parents approved the

accompanying Notice of Recommended Educational Placement (NOREP). (S-2)

35. Over the course of the 2012-13 school year, Student was deemed to have made moderate

progress on all of the IEP goals and objectives. By the fourth quarter, the progress report

reflected Student’s absences as impacting Student’s progress with reading. (S-3)

36. The District uses a subjective rating scale for reporting progress on IEP goals and

objectives. Teachers can give two numbers if a student is between the choices. (N.T.

199, 205-06, 664-65)

37. At the end of the 2012-13 school year, the Parent and District discussed Student

graduating, and the parties communicated with OVR. The District provided contact

information for OVR and made an initial contact for Student, but the Parent needed to

handle the registration. The Parent then arranged for Student to be provided some

vocational services outside of the District through OVR. In addition, OVR conducted a

community-based work assessment in July 2013, and at that time Student reportedly

exhibited difficulty with multi-step directions and tasks and maintaining focus and

attention, and resisted redirection. (N.T. 365-66, 433, 724-25, 760, 775-76; S-4, S-47 p.

37 at 145-47)

38. Student believed Student would graduate at the end of the 2012-13 school year and did

not want to return to school in the fall of 2013. (N.T. 713-14)

Page 8 of 34

2013-14 SCHOOL YEAR

39. Student’s IEP team met in October 2013 to develop a new IEP. The Parent and Student

attended the meeting. (S-5)

40. In September 2013, Student obtained scores on the EOWPVT and ROWPVT that were

identical to the scores from September 2012 (at and below the 1st percentile,

respectively). (S-5 p. 11)

41. In September 2013, Student remained at a second grade instructional reading level,

making a slight increase in word accuracy and comprehension and a slight decrease in

fluency from September 2012. (S-5 p. 11)

42. The October 2013 IEP noted needs with respect to semantic and pragmatic language;

reading comprehension; functional mathematics skills; attention and focus; following

directions containing more than one step; continued development of safety awareness;

and vocational skills (completing forms/applications, self-advocacy, and exploring

vocational opportunities). (S-5)

43. Transition services in the October 2013 IEP noted goals for supported employment

opportunities (with improvement of job skills) and supported living. Activities toward

the employment goal included attendance at the ATF two days per week, completion of

an interest inventory and career survey, and prompting for interpersonal skills with peers.

Activities toward the supported living goal included instruction in activities of daily

living. (S-5)

44. The October 2013 IEP provided annual goals and short term objectives in functional

mathematics skills (telling time, counting money and determining amounts of purchase

and change, solving word problems using addition, subtraction, or money, and linear

measurement); reading comprehension at a third grade level (identifying story elements,

answering comprehension questions, using comprehension strategies) and reading

fluency and accuracy; expressive, receptive, and pragmatic language (identifying items

within categories, labeling items/events, conversational turns with prompting); vocational

skills (identifying jobs of interest, completing applications with demographic

information, and following multi-step directions and focusing attention); and activities of

daily living (following multi-step directions and focusing attention, danger awareness).

(S-5)

45. Program modifications/items of specially designed instruction in the October 2013 IEP

remained essentially the same, with the addition of breaks to reinforce on-task behavior

and parental contact regarding transportation when Student would not attend the ATF.

The provision for vocabulary presentation was removed. Transportation was removed as

a related service, but the speech/language therapy remained. (S-5)

46. Student was determined to be not eligible for ESY services again because Student’s

ability to recoup skills and make progress on IEP goals was deemed to be adequate.

Student’s program was for life skills for all academic, daily living, and vocational

Page 9 of 34

instruction in addition to speech/language support. The Parent approved the

accompanying NOREP. (S-5)

47. Over the course of the 2013-14 school year, Student was deemed to have made moderate

progress on most of the IEP goals and objectives, with the exception of the objective for

using a clock to take a break that was not introduced and more limited progress on the

objectives for following multi-step directions and focusing attention. Student was absent

from school more than twenty school days that school year and missed a portion of

school days on several other occasions; however, ten of the missed full days were at the

very start of the school year. (N.T. 330-31; S-6, S-7)

48. The Parents advised the District that Student would not return to school in the fall of

2014. (N.T. 185; S-8 p. 15)

2014-15 SCHOOL YEAR

49. Student’s IEP team met again in September 2014 after the Parents advised that Student

would return for the 2014-15 school year, and Student did return on September 15, 2014.

No revisions were made to the IEP at that time. (N.T. 432-33, 760-61, 768; S-8)

50. Student was disappointed that Student returned to school in the fall of 2014 and

expressed the belief to teachers that Student should not be back in school. (N.T. 433-35,

545-46)

51. In September 2014, Student obtained a score on the EOWPVT below the 1st percentile.

Student also scored below the 1st percentile on the Peabody Picture Vocabulary Test,

Fourth Edition (PPVT-4) (which measures receptive vocabulary, see S-18 pp. 6-7). (S-8

p. 15; HO-1)

52. In September 2014, Student remained at a second grade instructional reading level, with a

slight decrease in word accuracy and fluency, and a significant decrease in

comprehension, from September 2013. Student showed some improvement in reading

accuracy at a third grade level over the previous September. (S-8 p. 16)

53. A transition assessment was conducted in late September 2014, including an interview

with Student and completion of a Picture Interest Career Survey. (N.T. 442; S-23)

54. The District convened another meeting of the IEP team in October 2014 for development

of a new IEP, but the Parents did not attend. The District members of the IEP team met

and discussed options for Student’s programming, including increasing the number of

days at the ATF. They also discussed other vocational programs in the area. The District

planned to but did not propose an increase in the number of days per week at the ATF

because the Parents were not in attendance. (N.T. 298-300, 429-30, 432; S-8 pp. 9-10)

55. The October 2014 IEP noted that the Parents had not provided input into that document,

asking the District to rely on prior information. As in the prior IEP, needs were identified

with respect to semantic and pragmatic language; reading comprehension; functional

Page 10 of 34

mathematics skills; attention and focus; following directions containing more than one

step; continued development of safety awareness; and vocational skills (completing

forms/applications, self-advocacy, and exploring vocational opportunities). (S-8)

56. Transition services in the October 2014 IEP noted goals for supported employment

opportunities (with improvement of job skills) and supported living. Activities toward

the employment goal included attendance at the ATF three days per week, completion of

an interest inventory and career survey, and prompting for interpersonal skills with peers

in addition to participating in self-advocacy scenarios. Contact information for OVR and

two other vocationally-oriented agencies was also provided. Activities toward the

supported living goal included instruction in activities of daily living. (S-8)

57. The October 2014 IEP provided annual goals and short term objectives in functional

mathematics skills (using fractions for measuring recipe ingredients, telling time,

counting money, solving functional word problems using money); reading

comprehension at a third grade level (identifying story elements, answering

comprehension questions, using comprehension strategies), reading fluency and

accuracy; expressive, receptive, and pragmatic language (vocabulary including synonyms

and antonyms, conversational turns with prompting); and daily living (following multi-

step directions and focusing attention, danger awareness, completing applications, and

requesting help). (S-8)

58. Program modifications/items of specially designed instruction in the October 2014 IEP

were for small group instruction for reading and mathematics, social skills instruction,

preferential seating with teacher proximity, prompting for remaining on task,

opportunities for reinforcement and practice of skills, test accommodations and

modifications, curriculum focused on key concepts, community-based instruction, and an

agenda. Small group or individual speech/language support was a related service. (S-8)

59. Student was determined to be not eligible for ESY services again because Student’s

ability to recoup skills and make progress on IEP goals was deemed to be adequate.

Student’s program was for life skills for all academic, daily living, and vocational

instruction in addition to speech/language support. The Parents did not return a signed

NOREP. (S-8)

60. The District issued a new RR in November 2014 that was a record review only because

the Parents did not consent to a reevaluation. The Parents did not provide input into the

RR. (N.T. 96; S-9 p. 1, S-10, S-47 pp. 49-50 at 194-99 )

61. The District school psychologist did not conduct any academic achievement assessment

for the 2014 RR but obtained curriculum-based assessments for educational

programming. Included in the RR were the results of a September 2014 QRI, a District

curriculum-based assessment in mathematics, and a writing sample. The District school

psychologist also did not observe Student for the 2014 RR. (N.T. 97, 103-04, 108; S-10)

62. Teacher input into the 2014 RR reflected that Student required prompting and redirection

to maintain focus and attention and follow directions throughout the school day, and

Page 11 of 34

difficulty retaining information and skills. Repetition, consistency, and practice were

considered to be necessary to maintain skills and make progress on IEP goals and

objectives. (S-10)

63. Student maintained expressive language skills from the fall of 2012 to the fall of 2014.

(N.T. 407-08)

64. The 2014 RR identified Student as eligible for special education on the bases of Autism,

Intellectual Disability, and a Speech or Language Impairment. Recommendations

included continuation of life skills support and speech/language support in addition to the

recommended evaluations. (S-10)

65. The District school psychologist who issued the November 2014 RR did not meet with

the Parents to review its results. (N.T. 104)

66. The District school psychologist who issued the November 2014 RR recommended a

psychiatric evaluation to assess the reasons for Student’s school avoidance. A

speech/language evaluation was also recommended. The Parents did not consent [to]

those evaluations. (N.T. 118-19, 334-35, 367; S-9 p. 1, S-47 pp. 49-50 at 194-99)

67. A QRI in March 2015 reflected a decline in scores at the second grade reading level in

accuracy and comprehension. Student similarly demonstrated a decrease in mathematics

skill proficiency on curriculum-based assessments. No speech/language assessments had

been conducted in the spring of 2015. (S-15 pp. 9-10)

68. Over the course of the 2014-15 school year, Student was deemed to have made minimal

to moderate progress on most of the IEP goals and objectives, with some not introduced

or monitored during some quarters. Student’s attendance was noted to impact Student’s

progress in all areas, with regression on some skills (such as counting coins and bills).

(S-12)

69. Student’s attendance was not consistent during the 2014-15 school year, with Student

absent nearly forty school days for all or a portion of the school day (more than one or

two periods). (N.T. 180-81, 331-32; S-13)

2015-16 SCHOOL YEAR

70. The IEP team met to develop a new IEP in September 2015. The Parent was not able to

attend. (N.T. 787; S-15)

71. Limited information on Student’s then-present levels of present educational and

functional performance were provided in the September 2015 IEP because Student’s

inconsistent attendance had limited the District’ ability to conduct assessments. (N.T.

176; S-15)

72. Needs identified in the September 2015 IEP remained the same as the most recent IEP:

semantic and pragmatic language; reading comprehension; functional mathematics skills;

Page 12 of 34

attention and focus; following directions containing more than one step; continued

development of safety awareness; and vocational skills (completing forms/applications,

self-advocacy, and exploring vocational opportunities). (S-15)

73. The transition section of the IEP remained very similar, with indications that Student was

not attending school so those activities were limited. The District proposed that Student

attend the ATF three days per week, and did not recommend that Student attend the ATF

five days per week because Student had academic and speech/language needs that could

not be met by the ATF. (N.T. 759, 784; S-15)

74. The September 2015 IEP provided annual goals and short term objectives in functional

mathematics skills (telling time, counting money, solving functional word problems using

money); reading comprehension at a third grade level (identifying story elements,

answering comprehension questions, using comprehension strategies), reading fluency

and accuracy; expressive, receptive, and pragmatic language (vocabulary including

synonyms in context, reciprocal conversational skills with prompting); and daily living

(following multi-step directions and focusing attention, danger awareness, completing

applications, and requesting help). An attendance goal at the high school with related

objectives, aiming for 100% attendance except for legitimate excuse, were added. (S-15)

75. Program modifications/items of specially designed instruction in the September 2015 IEP

were for small group instruction for reading and mathematics, social skills instruction,

prompting for remaining on task, opportunities for reinforcement and practice of skills,

test and assignment accommodations and modifications, curriculum focused on key

concepts, community-based instruction. Small group speech/language support was a

related service. (S-15)

76. The IEP team developed a positive behavior support plan for failure to attend school.

The hypothesis of the function of that behavior was determined to be gaining control or

escaping/avoiding tasks at school. No Functional Behavioral Assessment (FBA) was

conducted regarding that behavior since Student was not attending school, and there was

no specially designed instruction or related services specific to attendance. (N.T. 310-11,

455, 537, 539-41; S-15)

77. Student was determined to be not eligible for ESY services because Student would age

out of special education at the end of the 2015-16 school year. Student’s program was

for life skills for all academic, daily living, and vocational instruction in addition to

speech/language support. The Parent did not return a signed NOREP. (S-15)

78. The District also issued a NOREP on September 30, 2015 proposing that Student would

graduate in June 2016. That NOREP was not returned signed and approved. (S-16)

79. The District requested consent to another reevaluation in the fall of 2015. (S-17)

80. Student did not attend school during the 2015-16 school year because Student refused to

do so, believing Student had graduated. (N.T. 180, 333, 454, 457, 460, 462, 554, 682,

716-17; S-21, S-22)

Page 13 of 34

81. Student attended the ATF during the 2015-16 school year, and attendance was fairly

consistent. However, Student sometimes missed one or more days per week. (S-20)

82. The District issued a NOREP ending special education services in June 2016 due to

Student’s age and graduation. The Parents did not return the NOREP. (N.T. 460-61)

DISTRICT’S HIGH SCHOOL LIFE SKILLS CLASSROOM

83. In the high school life skills classroom, two special education teachers and at least two

paraprofessionals were present. The teachers split the class into groups for reading and

mathematics instruction typically based on ability level. The students were also divided

into groups for other activities such as social skills, vocational skills, and activities of

daily living. Most groups consisted of approximately six students with one teacher and

one paraprofessional. (N.T. 417-19, 446, 643-44, 647-48)

84. The students in the life skills classroom generally had breakfast upon arrival, then a

morning meeting followed by reading and mathematics instruction. The students would

leave the classroom for special or elective classes then have lunch in the cafeteria.

Afternoons consisted of social skills, vocational skills, and activities of daily living until

the end of the school day. (N.T. 420-21, 423, 425, 448-49, 522, 643-44)

85. Reading instruction was focused on comprehension including strategies to aid in

understanding the text. (N.T. 648, 686)

86. Mathematics instruction was focused on functional skills. (N.T. 688)

87. Students in the life skills classroom moved to different parts of the school building for

specials and electives and occasionally academic classes. (N.T. 326-27)

88. Students in the life skills classroom worked on organizational skills such as filing papers.

(N.T. 428, 644-45)

89. The life skills classroom used a class-wide behavior plan where the students could earn

rewards for exhibiting positive behavior. Students who exhibited frequent problematic

behavior were not permitted to participate in rewards. Student did not exhibit behaviors

at school that required additional behavioral intervention. (N.T. 424-25)

90. Student was social with peers at school both in and outside of the life skills classroom.

Student was able to communicate with others at school, but did have difficulty

maintaining conversations. (N.T. 419-20, 426, 447, 449, 556, 720)

91. The life skills class participated in pre-vocational activities in the community, including

at a public library, a supermarket, and a local resort. Those activities occurred once or

twice per week. (N.T. 301-07, 351-57, 726-27)

92. Vocational skills include pre-vocational and “soft” skills, such as following directions,

organizing and completing tasks, and cooperating with a group. Vocational skills also

Page 14 of 34

include social skills, functional academic skills, and activities of daily living. (N.T. 213,

218-19, 749-56, 762-63)

93. When students develop pre-vocational and vocational skills in multiple environments,

they are better able to transfer and generalize those skills to new situations such as a new

work setting. (N.T. 756-57)

ADULT TRAINING FACILITY

94. Student attended the ATF, operated by a behavioral health organization, beginning in the

fall of 2013. There, participants work on pre-vocational skills and participate in

community activities. Community integration is a major focus of the ATF program

Student attended. (N.T. 212-13, 235; S-29)

95. The District provides transportation to and from the facility for students who attend.

After a morning meeting, the adults engage in pre-vocational activities in small groups

until a break for lunch, which the adults assist in serving and cleanup. Activities that

might be vocational or recreational, in the facility or out in the community, then follow

for the afternoon again in small groups. (N.T. 225-27, 245-46, 340, 384)

96. The ATF begins planning for an adult’s discharge from the time of admission, aiming for

the most independence possible and identifying necessary steps toward that goal. (N.T.

238)

97. Student’s goal at admission to the ATF was for placement at the ATF following

graduation to continue to develop pre-vocational skills. (N.T. 239)

98. The ATF conducted an integrated assessment of Student in the fall of 2013 to identify

strengths and needs and to prioritize concerns. The priorities for Student were

determined to be a willingness to engage and learn pre-vocational skills, and appropriate

social interactions. Both of those priorities were vocational skills. (N.T. 216-19; S-29)

99. An initial annual assessment of Student was also conducted by the ATF when Student

first began attending there. At that time, Student demonstrated needs in most areas

because Student did not perform skills or did so inconsistently: functional skills such as

telling time; pre-vocational skills such as initiating tasks; community life such as

community volunteering; and social skills. Student was independent with self-care skills

and fairly consistent in the area of safety. The ATF identified employment barriers

including social skills and independent living skills, but few needs for work readiness.

(N.T. 220-22; S-30)

100. The ATF developed treatment plans that were reviewed regularly. Student’s skill deficits

in the fall of 2013 were identified with goals and planned interventions. (S-31)

101. During the 2013-14 school year, the ATF identified needs with respect to staying focused

and remaining on task (with a goal for accepting vocational opportunities offered) and

reducing anxiety that interfered with social relationships (with a goal to decrease nervous

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behaviors). Student demonstrated improvement in those areas based on anecdotal reports

and objective data where available. These results are provided to parents and the local

educational agency. (N.T. 228-29, 270; S-31, S-32, S-33, S-34)

102. A new annual assessment in the fall of 2014 revealed that Student had the same needs as

in the initial annual assessment, with additional safety concerns noted in a kitchen

environment and outdoors. Continued concerns with respect to a willingness to engage

and learn pre-vocational skills and appropriate social interactions were noted. (S-36, S-

375)

103. During the 2014-15 school year, the ATF identified needs with respect to staying focused

and remaining on task (with a goal and objective to attend the ATF and improve job

skills). Another objective was engaging in social activities with peers. Student

demonstrated inconsistent improvement toward meeting the goal and objectives based on

anecdotal reports and objective data where available. (S-39, S-40)

104. A new annual assessment in the fall of 2015 revealed that Student had the same needs as

in the fall 2014 annual assessment. Continued concerns with respect to a willingness to

engage and learn pre-vocational skills and appropriate social interactions were noted. (S-

41, S-426)

105. During the 2015-16 school year, the ATF identified needs again with respect to

maintaining attention to task without assistance and redirection (with a goal and objective

to attend the ATF and improve job skills). The additional objective for engaging in social

activities with peers remained. Student demonstrated inconsistent improvement toward

meeting the goal and objectives based on anecdotal reports and objective data where

available; however, Student did demonstrate decreased self-stimulatory behaviors by the

end of the school year. (S-41, S-43, S-45, S-46)

106. Throughout Student’s attendance at the ATF, Student demonstrated pre-vocational and

vocational needs, as well as social, emotional, and behavioral needs. Student’s progress

on ATF goals was variable. (N.T. 239, 252-53, 262)

107. Except for absences, Student attended the ATF two days per week during the fall of the

2013-14 school year and the District high school on the other three days. By the spring

semester, Student was at times attending the ATF three or four days per week. There was

a period of time when Student attended the ATF four days per week in order to make up

some missed time there. (N.T. 298, 341-43; S-48)

108. Except for absences, Student attended the ATF three days per week during the 2014-15

school year and the District high school the other two days. Student did not start at the

5 The ratings for each of the four parts of the 15-page annual assessment were identical to those in October 2013;

however, the determination of needs was subjective (N.T. 264, 266-70, 271-72). 6 The ratings for each of the four parts of the 15-page annual assessment were identical to those in October 2013 and

October 2014.

Page 16 of 34

ATF until the very end of September, and was absent approximately twenty four days

during the first semester and sixteen days the second semester. (N.T. 298, 341-44; S-48)

109. Student attended the ATF three days per week during the 2015-16 school year. (S-20, S-

43 p. 1)

110. The District did not suggest that Student attend the ATF for more than three days a week

because Student’s attendance was not, but needed to be, consistent. (N.T. 757-59)

INDEPENDENT EVALUATIONS

111. By agreement of the parties, an independent educational evaluation (IEE) was conducted

in the fall of 2015, with a report of that evaluation issued in September 2016. The

independent psychologist was not able to arrange for an observation of Student at the

ATF. (N.T. 570-71; S-19)7

112. Cognitive assessment for the IEE were the Comprehensive Test of Nonverbal

Intelligence – Second Edition (CTONI-2) and Woodcock-Johnson Tests of Cognitive

Abilities - Fourth Edition (WJ-IV-COG). The CTONI-2 yielded a Full Scale Composite

Index score (52) below the 1st percentile and in the very poor range; both of the scale

scores were consistent. On the WJ-IV-COG, Student attained a General Intellectual

Ability score in the very low range (standard score below 40, < 0.1 percentile rank), and

similar scores on those subtests. The detailed analysis of the cognitive assessment in the

IEE reflected a relative strength with Oral Vocabulary and a number of relative

weaknesses. (S-19 pp. 5-13)

113. Student’s academic achievement was assessed for the IEE (Woodcock-Johnson Tests of

Achievement – Fourth Edition (WJ-IV-ACH) reflecting scores in the very low range

across clusters and subtests compared to same-age and same-grade peers. Student

demonstrated relative strengths in achievement in the areas of Written Expression and

Spelling and other areas of relative weakness. (S-19 pp. 19-27)

114. Assessment of Student’s memory and learning profile (Wide Range Assessment of

Memory and Learning – Second Edition) for the IEE yielded overall impaired skills (<

0.1 percentile) with all subtest scores in the borderline/low average to impaired range.

(S-19 pp. 13-14)

115. The IEE also reported results of the Behavior Rating Inventory of Executive Function

(BRIEF) for adults from the Parent and an ATF employee. Concerns of the Parent were

reflected in the Shift, Working Memory, and Task Monitor Scales; no concerns were

indicated by the ATF employee. (S-19 pp. 15-18)

7 The markings on S-19, all of which are underlines or circles done in pen or pencil, were not made by the hearing

officer.

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116. The Beery-Buktenica Developmental Test of Visual Motor Integration administered as

part of the IEE together with optional companion instruments revealed weak overall

visual-motor integration skills. (S-19 pp. 18-19)

117. Rating scales from the Behavior Assessment System for Children – Third Edition

(BASC-3) were completed by the Parent and an ATF employee for the IEE. The Parent’s

form yielded at-risk concerns with respect to Adaptive Skills including Adaptability,

Leadership, Activities of Daily Living, and Functional Communication. The ATF

employee endorsed a clinically significant concern with respect to Withdrawal, and at-

risk concerns with respect to Atypicality and Social Skills. Overall, the BASC-3 did not

reveal significant difficulty with behavior. (S-19 pp. 29-32)

118. The Parent and ATF employee also completed rating scales to assess Student’s social

skills, revealing some areas of deficit. Those same individuals completed the Gilliam

Autism Rating Scale – Third Edition, yielding results supporting Autism. (S-19 pp. 32-

36)

119. The Parent completed the protocol for the Third Edition of the ABAS for the IEE,

reflecting under-developed adaptive skills overall with some variability among areas

assessed by that instrument. (S-19 pp. 36-39)

120. With respect to transition planning, the IEE sought and included input from the Parents

and the ATF employee. Both reflected that Student continued to need to develop skills

in identifying and learning about careers of interest, applying to post-secondary

institutions, understanding Student’s strengths and weaknesses and advocating for needs

based on weaknesses, and learning independent and daily living skills, as well as

improving functional academic skills. (S-19 pp. 38-40)

121. The IEE concluded that Student was a child with a disability and in need of specially

designed instruction based on Intellectual Disability and Autism. The private

psychologist who conducted the IEE offered recommendations for a blended functional

academic and vocational training program. Particular intervention was noted to be

necessary in the areas of social skills instruction as well as behavioral and social

manifestations of Student’s Autism. A focus on vocational training and

adaptive/functional skills was also noted. (S-19 pp. 44-46)

122. An Independent Speech and Language Evaluation was also conducted in November

2015. The independent speech/language pathologist observed Student at the ATF. (S-18

pp. 5-6)

123. The independent speech/language pathologist administered the PPVT-4 and the

EOWPVT-4. Student attained scores below those from previous administrations, well

below the 1st percentile on the former and below the 1st percentile in the latter; Student

thus showed regression in receptive language skills in the fall of 2015. On select subtests

of the Clinical Evaluation of Language Fundamentals – Fifth Edition (CELF-5).

Student’s scores on all subtests administered similarly fell within the severely delayed

range. (N.T. 403-06; S-18)

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124. Pragmatic language ability was also assessed for the independent speech/language

evaluation. Student demonstrated pragmatic language skills that were also significantly

delayed. All of Student’s language deficits are commensurate with Student’s cognitive

profile. (N.T. 188-90; S-18)

125. At this age and considering Student’s cognitive ability, Student would not likely make

significant gains in language skills, although Student could be expected to make progress

on specific targeted skills such as perspective-taking that are of interest to and useful for

Student. (179-80; S-18)

DISCUSSION AND CONCLUSIONS OF LAW

GENERAL LEGAL PRINCIPLES

Generally speaking, the burden of proof consists of two elements: the burden of

production and the burden of persuasion. At the outset, it is important to recognize that the

burden of persuasion lies with the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 62

(2005); L.E. v. Ramsey Board of Education, 435 F.3d 384, 392 (3d Cir. 2006). Accordingly,

the burden of persuasion in this case rests with the Parents who filed the complaint and requested

this hearing. Nevertheless, application of this principle determines which party prevails only in

the rare case where the evidence is evenly balanced or in “equipoise.” The outcome is much

more frequently determined by which party has presented preponderant evidence in support of its

position, as is the case here.

Hearing officers, as fact-finders, are also charged with the responsibility of making

credibility determinations of the witnesses who testify. See J. P. v. County School Board, 516

F.3d 254, 261 (4th Cir. Va. 2008); see also T.E. v. Cumberland Valley School District, 2014 U.S.

Dist. LEXIS 1471 *11-12 (M.D. Pa. 2014); A.S. v. Office for Dispute Resolution (Quakertown

Community School District), 88 A.3d 256, 266 (Pa. Commw. 2014). This hearing officer found

each of the witnesses to be credible, testifying to the best of their recollection from his or her

perspective. The relatively few inconsistencies in the testimony, such as for what period of time

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Student attended the ATF four days per week, were attributed to inaccurate memories rather than

any intent to deceive or exaggerate, and were relatively inconsequential to the issues presented.

The testimony of the independent psychologist was forthright, knowledgeable, and quite

persuasive, and was accorded significant weight, particularly with respect to Student’s current

needs.8 On the other hand, the testimony of the Parent was undermined by the assertion that

Student made “no progress at all, none” from the start of the 2013-14 school year to the end of

the 2015-16 school year (N.T. 731); in addition, much of her testimony regarding Student’s

program at the District was second-hand and was thus accorded reduced weight.9 The testimony

of all other witnesses was gauged to be straightforward and given essentially equal weight.

In reviewing the record, the testimony of every witness, and the content of each exhibit,

were thoroughly considered in issuing this decision, as were the parties’ closing arguments.

IDEA PRINCIPLES

The IDEA and state and federal regulations obligate local educational agencies (LEAs) to

provide a “free appropriate public education” (FAPE) to children who are eligible for special

education. 20 U.S.C. §1412. In Board of Education of Hendrick Hudson Central School District

v. Rowley, 458 U.S. 176 (1982), the U.S. Supreme Court held that this requirement is met by

providing personalized instruction and support services that are reasonably calculated to permit

the child to benefit educationally from the instruction, providing the procedures set forth in the

Act are followed. The Third Circuit has interpreted the phrase “free appropriate public

education” to require “significant learning” and “meaningful benefit” under the IDEA.

8 Further to his credit, this psychologist answered many questions with “yes and no” (e.g., N.T. 599, 610-11, 613),

recognizing that the process of conducting evaluations of and programming for special education needs is dependent

upon many factors. 9 The Parents’ concerns, however, were sincere and clearly genuine, and certainly not discounted.

Page 20 of 34

Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). LEAs meet the

obligation of providing FAPE to eligible students through development and implementation of

an IEP that is “‘reasonably calculated’ to enable the child to receive ‘meaningful educational

benefits’ in light of the student’s ‘intellectual potential.’ ” Mary Courtney T. v. School District

of Philadelphia, 575 F.3d 235, 240 (3d Cir. 2009) (citations omitted).

Recently, the U.S. Supreme Court considered anew the application of the Rowley

standard, observing that an IEP “is constructed only after careful consideration of the child’s

present levels of achievement, disability, and potential for growth.” Endrew F. v. Douglas

County School District RE-1, ___ U.S. ___, ___, 137 S. Ct. 988, 999, 197 L.Ed.2d 335, 350

(2017).

The “reasonably calculated” qualification reflects a recognition that crafting an

appropriate program of education requires a prospective judgment by school

officials. The Act contemplates that this fact-intensive exercise will be informed

not only by the expertise of school officials, but also by the input of the child’s

parents or guardians. Any review of an IEP must appreciate that the question is

whether the IEP is reasonable, not whether the court regards it as ideal.

The IEP must aim to enable the child to make progress. After all, the essential

function of an IEP is to set out a plan for pursuing academic and functional

advancement. This reflects the broad purpose of the IDEA[.] * * * A

substantive standard not focused on student progress would do little to remedy the

pervasive and tragic academic stagnation that prompted Congress to act.

That the progress contemplated by the IEP must be appropriate in light of the

child’s circumstances should come as no surprise. A focus on the particular child

is at the core of the IDEA. * * * As we observed in Rowley, the IDEA “requires

participating States to educate a wide spectrum of handicapped children,” and

“the benefits obtainable by children at one end of the spectrum will differ

dramatically from those obtainable by children at the other end, with infinite

variations in between.”

Endrew F, ___ U.S. ___, 137 S. Ct. 988, 999, 197 L.Ed.2d 335, 349-50 (2017) (citing Rowley at

206-09). The Court explained that, “an educational program must be appropriately ambitious in

light of [the child’s] circumstances… [and] every child should have the chance to meet

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challenging objectives.” 137 S. Ct. at 1000, 197 L.Ed.2d at 351. This is especially critical where

the child is not “fully integrated into the regular classroom.” Id. The Court thus concluded that

“the IDEA demands … an educational program reasonably calculated to enable a child to make

progress appropriate in light of the child’s circumstances.” 137 S. Ct. at 1001, 197 L.Ed.2d 352.

This standard is not inconsistent with the above interpretations of Rowley by the Third Circuit.

As Rowley, Endrew, and the IDEA make clear, the IEP must be responsive to the child’s

identified educational needs. See 20 U.S.C. § 1414(d); 34 C.F.R. § 300.324. However, the IEP

need not “provide ‘the optimal level of services,’ or incorporate every program requested by the

child's parents.” Ridley School District v. M.R., 680 F.3d 260, 269 (3d Cir. 2012). Furthermore,

“the measure and adequacy of an IEP can only be determined as of the time it is offered to the

student, and not at some later date.” Fuhrmann v. East Hanover Board of Education, 993 F.2d

1031, 1040 (3d Cir. 1993).

GENERAL SECTION 504 AND ADA PRINCIPLES

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of a

handicap or disability. 29 U.S.C. § 794. A person has a handicap if he or she “has a physical or

mental impairment which substantially limits one or more major life activities,” or has a record

of such impairment or is regarded as having such impairment. 34 C.F.R. § 104.3(j)(1). “Major

life activities” include learning. 34 C.F.R. § 104.3(j)(2)(ii). Nevertheless, the obligation to

provide FAPE is substantively the same under Section 504 and under the IDEA. Ridgewood,

supra, 172 F.3d at 253; see also Lower Merion School District v. Doe, 878 A.2d 925 (Pa.

Commw. 2005). Thus, the FAPE claims under both statutes will be addressed together.

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THE PARENTS’ CLAIMS

The Parents challenge various aspects of Student’s program. The first to be addressed,

logically, is whether the District failed to conduct adequate evaluations of Student to guide

programming decisions. The first relevant evaluation was in the fall of 2012, a reevaluation of

Student that would serve to inform programming decisions for the beginning of the relevant time

period, specifically the 2013-14 school year.

The IDEA sets forth two purposes of the required evaluation or reevaluation: to

determine whether or not a child is a child with a disability as defined in the law, and to

“determine the educational needs of such child[.]” 20 U.S.C. §1414(a)(1)(C)(i). In conducting

the evaluation, the law imposes certain requirements on local education agencies to ensure that

sufficient and accurate information about the child is obtained:

(b) Conduct of evaluation. In conducting the evaluation, the public agency must—

(1) Use a variety of assessment tools and strategies to gather relevant

functional, developmental, and academic information about the child,

including information provided by the parent, that may assist in determining—

(i) Whether the child is a child with a disability under § 300.8; and

(ii) The content of the child’s IEP, including information related to

enabling the child to be involved in and progress in the general education

curriculum (or for a preschool child, to participate in appropriate

activities);

(2) Not use any single measure or assessment as the sole criterion for

determining whether a child is a child with a disability and for determining an

appropriate educational program for the child; and

(3) Use technically sound instruments that may assess the relative contribution

of cognitive and behavioral factors, in addition to physical or developmental

factors.

34 C.F.R. §§ 300.304(b); see also 20 U.S.C. § 1414(b)(2). The evaluation must assess the child

“in all areas related to the suspected disability, including, if appropriate, health, vision, hearing,

Page 23 of 34

social and emotional status, general intelligence, academic performance, communicative status,

and motor abilities[.]” 34 C.F.R. § 304(c)(4); see also 20 U.S.C. § 1414(b)(3)(B). Additionally,

the evaluation must be “sufficiently comprehensive to identify all of the child’s special education

and related services needs, whether or not commonly linked to the disability category in which

the child has been classified,” and utilize “[a]ssessment tools and strategies that provide relevant

information that directly assists persons in determining the educational needs of the child[.]” 34

C.F.R. §§ 304(c)(6) and (c)(7); see also 20 U.S.C. § 1414(b)(3). All evaluations, including

reevaluations, require review of existing data. 20 U.S.C. § 1414(C)(1); 34 C.F.R. § 300.305(a).

The Parents point out a number of potential flaws with the 2012 RR: the failure of the

school psychologist to observe Student in any setting, the absence of any standardized

assessments other than the WAIS-IV, and the failure to comprehensively assess Student’s

executive functioning skills, memory, pragmatic language skills, and social/emotional/behavioral

functioning. Certainly the addition of some if not all of the assessments conducted for the IEE,

as well as observations by the school psychologist, would have yielded significant useful

information about Student’s functioning at school and in vocational settings to assist the IEP

team in making programming decisions. This hearing officer does have concern with the use of

strictly curriculum-based measures in the fall of 2012 to understand Student’s academic

achievement, 10 as well as the school psychologist’s description of the purpose of the November

2012 reevaluation and the failure to meet with the Parents to discuss the results and determine

whether additional assessments were warranted. The independent psychologist also provided a

cogent explanation of the utility of obtaining rating scales from individuals in different

environments as part of a special education evaluation (N.T. 582-83), contrary to the use of the

10 The testimony regarding the District norming of its curriculum-based assessments, while credible, applied only to

students through eighth grade. (N.T. 745-46)

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ABAS-II in 2012.11 Nevertheless, it must be remembered that Student had attended school in the

District since 2000, and the District was clearly very well informed of Student’s various

strengths and needs over time. Student’s teachers provided significant input into the 2012 RR

that included their own observations both inside and outside the classroom. In addition, there

was no indication in the record that any of the District professionals had concerns with Student’s

executive functioning, memory, or social/emotional/behavioral functioning that would suggest

additional assessments were necessary in order to develop IEPs for Student. Both the Parent and

Student participated in the IEP team meeting in the fall of 2013, the first during the relevant time

period, and were able to provide input into the program including Student’s strengths and needs.

Moreover, even the independent psychologist who conducted the IEE stopped short of

characterizing the 2012 RR as inadequate under the law (N.T. 581).

The Parents point out similar flaws in the fall 2014 RR. However, the record is clear that

the Parents would not provide their consent to new assessments, so the District was limited to a

review of records. 20 U.S.C. § 1414(c)(3); 300 C.F.R. §§ 300.300(c) and (d). In sum, despite

the fact that the District did not have as complete a picture of Student in the fall of 2012 and

2014 as did the independent psychologist who conducted the IEE, the circumstances in this case

do not equate to a denial of FAPE where there was information available from which the team

could determine the content of Student’s IEPs, the substance of which must also be examined.

The next issue is whether Student’s IEPs were appropriate for Student under the IDEA

and the implementing regulations. As noted above, an IEP must be reasonably calculated to

enable the student to receive meaningful educational benefit in light of the student’s unique

circumstances and potential. However, “it would again be inconsistent with the longstanding

11 The District’s reasons for not doing so were less persuasive (N.T. 110, 114).

Page 25 of 34

interpretation of the IDEA to find that providing a FAPE requires designing specific monitoring

goals for every single recognized need of a disabled student. As noted above, a FAPE is a

threshold guarantee of services that provide a meaningful educational benefit, not a perfect

education.” Coleman v. Pottstown School District, 983 F. Supp. 2d 543, 572-573 (E.D. Pa.

2013), aff’d, 581 Fed. App’x 141 (2014). An absence of goals or monitoring of progress with

respect to a particular area of educational need can amount to a procedural violation. Benjamin

A. v. Unionville-Chadds Ford School District, 2017 U.S. Dist. LEXIS 128552, *37-38, 2017 WL

3482089 (E.D. Pa. 2017). However, a procedural violation is actionable under the IDEA only if

it results in a loss of educational opportunity for the student, seriously deprives parents of their

participation rights, or causes a deprivation of educational benefit. D.S. v. Bayonne Board of

Education, 602 F.3d 553, 565 (3d Cir. 2010); 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. §

300.513(a)(2).

The Parents challenge the District’s IEPs for the 2013-14, 2014-15, and 2015-16 school

years with respect to academic, social/emotional/behavioral, speech/language, and executive

functioning skills, activities of daily living, post-secondary transition vocational programming,

and eligibility for ESY services. (N.T. 20; Parents’ Closing at unnumbered pp. 29-30)

With regard to academics, review of the IEPs reflects that Student had similar annual

goals throughout the time period in question, focused on functional reading, functional

mathematics, expressive/ receptive/pragmatic language, vocational skills, and activities of daily

living, all of which were needs identified for Student. Student’s short term objectives did change

from year to year, reflecting that the IEP team considered Student’s then-current strengths and

weaknesses at the time of development of each IEP. It must also be remembered that Student

required ongoing repetition and practice to maintain skills across domains. Thus, it is not

Page 26 of 34

inappropriate that Student’s IEPs continued to emphasize skills that Student had acquired in

order not to regress.

The Parents point to Student’s relatively stagnant instructional grade levels in reading and

mathematics skills, for example. Nevertheless, the IEPs and Student’s progress must be

evaluated in light of Student’s unique circumstances and potential. The independent evaluator

recommended that Student’s program be focused on functional academics, which is what the

District did throughout the time period in question, as did the ATF. There was also evidence that

Student could not be expected to make significant gains in language skills. Rather than

concentrating on any specific grade levels, the more pertinent consideration is whether the

academic programming was appropriately functional for Student. The preponderant evidence is

that the IEPs implemented over the three school years did provide for Student to continue to

acquire and maintain functional academic skills geared toward Student’s unique abilities and

weaknesses, at Student’s age, and were sufficiently challenging for Student who struggled with

consistent demonstration of previously acquired skills.

With respect to the post-secondary programming, the following is instructive.

The IDEA requires that every IEP created for a child that is age sixteen or older

must include appropriate measurable post-secondary goals based on age

appropriate transition assessments related to training, education, employment, and

independent living skills, as well as corresponding transition services. 20 U.S.C. §

1414(d)(1)(A)(VIII). A transition plan is a “set of activities” based on the

student's needs and is created to help the disabled student move from school to

post-school activities. 20 U.S.C. § 1401(34)(B); 34 C.F.R. § 300.43.

K.C. ex rel. Her Parents v. Nazareth Area School District, 806 F. Supp. 2d 806, 822 (E.D. Pa.

2011). In Pennsylvania, LEAs are required to begin transition planning during a student’s

fourteenth year. 22 Pa. Code § 14.131(a)(5).

The Third Circuit has not defined what amount of transition planning is required

in an IEP to ensure a FAPE. Several courts, including those in the Eastern

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District of Pennsylvania, have suggested that inadequate transition planning is a

procedural defect and thus should be evaluated based on whether substantial harm

has resulted. The floor set by the IDEA for adequate transition services appears

to be low, focusing on whether opportunities are created for a disabled student to

pursue independent living and a career, not just a promise of a particular result.

Coleman, supra, 983 F. Supp. 2d at 566.

The Parents, quite understandably, are concerned that Student is not sufficiently prepared

to function independently in an adult society, including holding employment without support and

attaining a level of self-sufficiency. The services available to young adults who are beyond the

age of IDEA eligibility are undeniably limited. However, the District did not, and indeed was

not obligated to, guarantee any particular outcome for Student upon graduation, including

helping Student to learn a trade. Student participated in a variety of vocational and independent

living activities, including the development of pre-vocational soft skills, that were geared toward

post-secondary vocational and living opportunities based on identified transition goals. Those

activities occurred both in the school environment (including a variety of community-based

activities) and at the ATF where Student’s individual needs, specifically undeveloped pre-

vocational skills, dictated Student’s goals for that program. Student’s post-secondary interests

also changed over time. While it is true that the District did not actively monitor Student’s

progress at the ATF, and Student’s growth in that program was incremental and at times

inconsistent, the mere fact that Student continued to demonstrate pre-vocational needs at the end

of the 2015-16 school year does not mean that Student failed to make progress in developing and

maintaining many of those varied skills. Taken as a whole, and giving due consideration to

Student’s unique strengths and needs, the evidence supports a conclusion that the District

provided opportunities for pursuit of post-secondary employment and daily living to Student that

were aligned with Student’s interests, goals, and potential.

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Next, the Parents challenge the District’s programming for Student’s social, emotional,

behavioral, and executive functioning. However, with the exception of attendance discussed

below, Student did not exhibit emotional or behavioral needs at school, including manifesting

anxiety, that required intervention beyond the classroom incentive plan. Student was provided

instruction in and practice with social skills and organization throughout the school day, and

engaged appropriately with peers in that environment. Even the independent psychologist noted

that Student’s executive functioning would not necessarily be specifically addressed in an IEP

since Student did not exhibit the same deficits at the ATF as Student did at home (S-19 p. 45). In

sum, the District identified Student’s social, emotional, and behavioral needs that were

manifested in the educational and vocational environment and appropriately responded, which is

what the law requires.

With respect to ESY eligibility, it is surprising that Student’s IEPs continually reflected

that Student did not lack the ability to recoup skills and make progress on IEP goals12 in light of

the extensive citation throughout the record to Student’s need for repetition and practice to

maintain skills. Nevertheless, the evidence is clear that the District was informed that Student

would graduate at the end of the 2013-14 school year, only learning in September 2014 that

Student would return, so there was no reason for it to consider ESY in 2014. By the summer of

2015, Student’s attendance at school had become steadily poorer, and it is far from likely that

Student would have been amenable to attending an ESY program in 2015. Student graduated at

the end of the 2015-16 school year, so ESY was not available. For these reasons, the evidence

does not establish a denial of FAPE for ESY programming.

12 The relevant time period begins at the end of July 2013; ESY that summer would have been concluded or nearly

concluded by then.

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The final FAPE matter to be discussed is whether the District responded appropriately to

Student’s failure to attend school. The evidence reflects that Student’s irregular attendance at the

end of the 2012-13 school year was impacting Student’s progress on reading goals and

objectives. Student missed the first ten days of the 2013-14 school year, but attendance

moderated after that period and was not a cause for alarm. The start of the 2014-15 school year

was rather different, with Student disappointed that Student had not graduated and expressing

that Student should not be in school. The District’s response was, quite appropriately, to seek a

psychiatric evaluation as it does when any student misses a significant number of school days, so

that a truancy elimination plan could be conducted. It is quite unfortunate that the Parents would

not consent to that evaluation.

Nevertheless, certainly by the start of the second semester of the 2014-15 school year,

some action should have been taken by the District to address Student’s lack of attendance at

school,13 particularly given Student’s need for continued repetition and practice to maintain skills

in all areas and the recognition that Student could not increase the number of days per week at

the ATF unless Student demonstrated a more consistent presence. With no agreement for the

psychiatric evaluation, it is perplexing that the IEP team did not convene to discuss how to

address Student’s irregular attendance that was affecting Student in all areas. The problem

worsened in the following 2015-16 school year when Student did not attend school at all. While

adding an attendance goal to the September 2015 IEP and proposing an FBA was surely a step in

the right direction, the time to conduct an FBA and determine interventions to encourage

13 The District’s Closing Argument emphasizes Student’s poor attendance, and this hearing officer agrees with its

suggestion that it is not necessary to calculate the exact number of days that Student was absent (District’s Closing

at 9 n. 1), particularly since there are a few apparent, but certainly not unusual, human errors in the documentation.

There is no dispute between the parties that Student’s attendance was a concern during the 2014-15 and 2015-16

school years.

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Student’s attendance was in the spring of 2015, when Student was still at school on many days.

There was also no apparent consideration given to identifying changes to the school-based

program that may have helped Student be available for academic instruction and

speech/language services somewhere other than the classroom to which Student was reluctant to

return. This hearing officer concludes that the failure to address Student’s attendance constituted

a denial of FAPE for the second half of the 2014-15 school year and the entire 2015-16 school

year, for which relief shall be awarded.

REMEDY: COMPENSATORY EDUCATION

As a remedy, the Parents seek compensatory education, which is an appropriate form of

relief where a school district knows, or should know, that a child's educational program is not

appropriate or that he or she is receiving only trivial educational benefit, and the district fails to

remedy the problem. M.C., supra. Such an award may compensate the child for the period of

time of deprivation of educational services, excluding the time reasonably required for a school

district to correct the deficiency. Id. The Third Circuit has recently endorsed a different

approach, sometimes described as a “make whole” remedy, where the award of compensatory

education is designed “to restore the child to the educational path he or she would have traveled”

absent the denial of FAPE. G.L. v. Ligonier Valley School District Authority, 802 F.3d 601, 625

(3d Cir. 2015); see also Reid v. District of Columbia Public Schools, 401 F.3d 516 (D.C. Cir.

2005) (adopting a qualitative approach to compensatory education as proper relief for denial of

FAPE). Compensatory education is an equitable remedy. Lester H. v. Gilhool, 916 F.2d 865 (3d

Cir. 1990).

The Parents suggest that Student should be awarded full days of compensatory education,

and further assert that a make whole remedy requires much more (Parents’ Closing at

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unnumbered 27-30). They also sought introduction of a number of District education records,

mainly evaluations of and programming for Student prior to those admitted for the relevant time

period, for consideration of that qualitative remedy. Both parties provided argument on the

utility of these documents in their closings as was requested.

After review, this hearing officer is not persuaded that consideration of those proffered

documents would assist in calculation of a compensatory education award in 2017 for several

reasons. First, to the extent the documents might suggest previous FAPE denials as the Parents

contend, evidence on whether the District provided or did not provide an appropriate educational

program to Student outside the scope of the claims is not relevant and must be excluded. To

hold otherwise would, in this hearing officer’s estimation, render meaningless the statutory

requirement inserted into the IDEA in 2004 for filing within the limitations period. Stated

another way, if a party could file a complaint beyond the two-year limitations period, but then be

permitted to seek the very same remedy that could have been pursued if the complaint had been

filed on a timely basis, the IDEA statute of limitations, and the precedential authority such as

G.L. construing its language, would be wholly inconsequential. Second, G.L. stated very clearly

that a compensatory education demand that seeks to restore a child to the position he or she

would have held “but for the deprivation,” 802 F.3d at 625 (emphasis added), was an available

remedy and, accordingly, any such award must still be tied to the FAPE denial that is at issue.

Moreover, permitting the Parents to proceed with the evidence regarding the provision of FAPE

prior to July 2013 would directly contravene the caution of the G.L. Court that a party may not

attempt to sweep together untimely claims with those that were filed within the two-year

statutory period. 802 F.3d at 625. For all of these reasons, the District’s objection to the exhibits

offered by the Parent at the close of the hearing is hereby sustained.

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This hearing officer concludes that the record does not include any relevant evidence on

an appropriate equitable remedy that would place Student in the position where Student would be

absent the FAPE denial described above. Thus, the hour-for-hour method will be used as the

basis for the appropriate approach. Student must be provided with the number of hours of

compensatory education lost due to the failure to address attendance at school (not the ATF)

during the spring semester of the 2014-15 school year and the entire 2015-16 school year. That

amount shall be calculated at 5.5 hours per day14 for each day of unexcused absence from school

during the second half of the 2014-15 school year,15 in addition to eleven hours per week (two

days each week that Student would have attended school) for the entire 2015-16 school year

(thirty six weeks) for a 2015-16 school year total of 396 hours of compensatory education.

The hours of compensatory education are subject to the following conditions and

limitations. Student’s Parents may decide how and by whom the hours of compensatory

education are provided. The compensatory education may take the form of any appropriate

developmental, remedial or enriching educational service, product, or device that furthers

Student’s post-secondary transition, academic, speech/language, or social/emotional/behavioral

needs and skills. The compensatory education services may occur when convenient for Student

and the Parents, and may be used at any time from the present until Student turns age twenty-six

(26). The compensatory services shall be provided by appropriately qualified professionals

selected by the Parents.

14 Secondary school students are required to be provided with 990 hours of instruction for the school term of a

minimum of 180 school days. 22 Pa. Code §§ 11.1, 11.3. 15 Due to apparent errors in some of the attendance records, this exact number is not set forth as it cannot be

calculated with confidence.

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CONCLUSION

Based on the foregoing findings of fact and for all of the above reasons, this hearing

officer concludes that the District did deny Student FAPE for part of the 2014-15 and 2015-16

school years and Student must be awarded compensatory education to remedy the deprivation.

ORDER

AND NOW, this 16th day of September, 2017, in accordance with the foregoing findings

of fact and conclusions of law, it is hereby ORDERED as follows.

1. The District did fail in part of its FAPE obligations to Student under the IDEA during the

second half of the 2014-15 school year through the end of 2015-16 school year, not

including ESY programming.

2. The District shall provide Student with compensatory education as follows:

a. For the entire second semester of the 2014-15 school year, 5.5 hours for each day

of Student’s unexcused absence from school according to final school records;

and

b. For the entire 2015-16 school year, 396 total hours.

3. The compensatory education award is subject to all of the following conditions and

limitations:

a. Student’s Parents may decide how and by whom the hours of compensatory

education are provided. The compensatory education may take the form of any

appropriate developmental, remedial or enriching educational service, product, or

device that furthers Student’s post-secondary transition, academic,

speech/language, or social/emotional/behavioral needs and skills. The

compensatory education services may occur when convenient for Student and the

Parents, and may be used at any time from the present until Student turns age

twenty-six (26).

b. The compensatory services shall be provided by appropriately qualified

professionals selected by the Parents. The cost to the District of providing the

Page 34 of 34

awarded hours of compensatory services may be limited to the average market

rate for private providers of those services in the county where the District is

located.

4. Nothing in this decision and order should be read to prevent the parties from mutually

agreeing to alter any of its terms.

It is FURTHER ORDERED that any claims not specifically addressed by this decision

and order are DENIED and DISMISSED.

Cathy A. Skidmore _____________________________

Cathy A. Skidmore

HEARING OFFICER

18366-1617AS